Current through Register Vol. 47, No. 5, March 10, 2024
3.1 Wage
Protection Act Rules 4.1 and 4.3-4.8,
7 CCR
1103-7, regarding investigation procedures and
protections, are incorporated by reference, except that as incorporated:
(A) all references to "wage" or "wage and
hour" Complaints, Claims, rights, responsibilities, or proceedings shall
include Complaints, Claims, rights, responsibilities, and proceedings within
the Act; and
(B) in Rule 4.4.3
"C.R.S. §
8-4-113(1)(b)" is
replaced with "C.R.S. §§
8-4-113(1)(b) and
8-1-140(2)."
3.2 Complaint filings.
3.2.1 A person who is aggrieved by a
violation of C.R.S. §§
8-5-201 or
8-5-202 may file a complaint with
the Division. "Aggrieved by" means witnessed, suffered, or injured by a
perceived violation.
3.2.2 A person
who wishes to file a Complaint shall use a Division-approved form(s) and shall
include the Complainant's signature, the Complainant's contact information, the
employer's contact information, and basis for the Complaint. If the Division
does not have an applicable form publicly posted when the Complainant intends
to file, then a Complainant may file a Complaint in any form, by mail or
electronic mail, with the Division, and the Division may later require the
Complainant to complete the Division's Complaint form, but the filing date will
remain the date of the Complainant's original filing.
3.2.3 A Complainant shall respond in a timely
manner to informational or investigatory requests by the Division. Failure to
comply with this Rule may result in dismissal of the Complaint. If a Complaint
is dismissed before a Notice of Complaint is sent to the employer due to
failure to respond to a Division request for information, the Complaint may be
reopened if the Complainant provides the requested information or documentation
to the Division within 35 days of the request. A Complainant may be required to
file a new Complaint if the response is received more than 35 days after the
request.
3.2.4 The Division will
not accept complaints of violations that occurred before January 1,
2021.
3.2.5 Anonymous complaints
will be accepted, but will not be investigated using the Division's
administrative procedure, do not trigger any notice or participation rights for
the Complainant, and will be investigated only at the discretion of the
Division.
3.3 The
Complaint shall include a short and plain statement of its grounds, and should
also include or attach any relevant postings or communications the Complainant
is able to provide. The employer must explain which, if any, allegations it
disputes. Any evidence probative of a relevant issue may be submitted or
considered. The Division will cease investigating a Complaint that, upon
review, fails to raise a reasonable inference of a violation of C.R.S.
§§
8-5-201 or
8-5-202.
3.4 Filing, service, and deadlines.
3.4.1 A Complaint or appeal is considered
"filed" with the Division when it is received by the Division via mail, fax,
email, online submission, or personal delivery. Any Complaint, appeal, or
termination received after 11:59pm Mountain Time is considered filed the next
business day.
3.4.2 Deadlines in
these Rules may be extended for good cause. In considering whether good cause
exists, the Division will determine whether the reason is substantial and
reasonable, and must take into account all available information and
circumstances pertaining to the specific Complaint.
3.4.3 In a Complaint investigation, the
Division will send the employer a Notice of Complaint, along with any relevant
supporting documentation submitted by the Complainant, via U.S. mail,
electronic means, or personal delivery. The employer must respond within 14
days after a Complaint is sent, unless an extension is granted.
3.4.4 Where a claim, complaint, or
investigation for violation of C.R.S. §§
8-5-201 or
8-5-202 has been filed or
commenced, the employer shall preserve all relevant documents throughout the
duration and until the expiration of the statutory period within which a person
aggrieved may bring a civil action.
3.4.5 A Complainant may withdraw a Complaint
at any time before issuance of a determination by notifying the Division in
writing.
3.5
Determinations
3.5.1 Upon conclusion of the
investigation of a Complaint, the Division will issue a determination. The
Division shall notify the parties on the date the determination is issued by
the Division's compliance investigator by sending (A) a copy of the
determination; and (B) notice of the parties' termination and appeal
rights.
3.5.2 The date of
"issuance" of the Division's determination is the date the Division's
determination is "sent." Both the termination and appeal deadlines are
calculated from the date the Division's determination is originally issued and
sent to the parties.
3.5.3
Determinations by the Division may include the following remedies, depending on
which, if any, the Division's findings support:
(A) order(s) to cease non-compliance and/or
effectuate compliance, as authorized by C.R.S. §
8-5-203(1) and
statutes on Division investigative and enforcement authority in C.R.S. Title 8,
Article 1; and
(B) fines pursuant
to C.R.S. §§
8-1-140(2) and/or
8-5-203(4).
3.6
The Division may exercise its discretion to have an investigation sequenced
and/or divided into two or more stages on discrete questions of liability or
relief (e.g., bifurcation), yielding two or more
determinations and/or phases of the investigation.
3.7 Appeals.
3.7.1 Any party to a Claim or determination
may appeal the Division's determination. The provisions governing appeals under
C.R.S. §
8-4-111.5 (with Rules concerning a
"wage complaint" or Article 4 applicable to Complaints under the Act, and
references to "employee" applicable to Complainants under the Act) and Rule 6
of the Wage Protection Act Rules,
7 CCR
1103-7, as amended and modified, shall apply to Claims
and determinations under these Rules, to the maximum extent consistent with the
Colorado Administrative Procedure Act, C.R.S. §§
24-4-105,
24-4-106. Parties may not appeal
the Division's decisions to dismiss a Complaint for failure to create a
reasonable inference of a violation of C.R.S. §§
8-5-201 or
8-5-202 or failure to respond to
Division requests for documents or information.
3.7.2 An appeal may, in the discretion of the
hearing officer, be sequenced and/or divided into two or more stages on
discrete questions of liability or relief (e.g., bifurcation),
yielding two or more decisions and/or phases of the appeal.
3.8 A certified copy of any citation, notice
of assessment, or order imposing relief or remedies may be filed with the clerk
of any court having jurisdiction over the parties at any time after the entry
of the order. Such a filing can be in a county or district court, and will
thereby have the effect of a judgment from which execution may issue.
